Summary

Between November 2, 2010 and March 2, 2011, nearly 12,000
migrants entering Greece at its land border with Turkey were arrested and
detained. The detention facilities where they were held did not meet minimal
human rights standards. Though their treatment varied from place to place, the
European Court of Human Rights (ECtHR) has held that migrant detention in
Greece generally constitutes “inhuman and degrading treatment.”

During this same period, the European Union’s (EU)
agency for the management of operational cooperation at external borders,
Frontex, provided Greece with both manpower and material support, made available
by participating states, which facilitated the detention of those migrants in
sub-human conditions in Greece’s overcrowded migrant detention centers.

This report addresses this disturbing contradiction.
Although the ECtHR categorically ruled that the transfer of migrants to
detention in Greece would expose them to prohibited abuse, an executive agency
of the EU and border guards from EU member states knowingly facilitate such
transfers.

The focus of this report is the period of Frontex’s
“RABIT 2010” deployment in Greece. With RABIT (“Rapid Border
Intervention Team”), Frontex deployed 175 border guards contributed by
Norway and EU member states to the Greek government’s efforts to manage
the influx of migrants into the northeastern region of Greece along the Evros
River bordering Turkey. The “guest officers,” chosen from a pool
provided by participating EU member states and other non-EU European states,
operated in Greece in their respective national uniforms but not under the
operational control of their home authorities.

Frontex describes its mission as one of coordination,
research, and surveillance. But Frontex sent equipment such as vans, buses,
patrol cars, and a helicopter, provided by participating states, and covered
the expenses incurred by the RABIT operation. Frontex also operated in close
proximity to the four detention centers where human rights violations have
consistently been recorded. During the RABIT operation, guest officers from participating
states who went out on patrols with at least one Greek officer were authorized
to apprehend migrants and then transfer them to Greek counterparts who ran
the detention facilities.

Frontex has been present
in the Evros region since October 2010. The RABIT mission was designed as an
emergency measure in response to the arrival of a large number of migrants to
Greece. RABIT was initially planned to end December 2 but was extended until
March 2, 2011, and then replaced by a permanent Frontex presence conducting the
same tasks.

During Frontex’s deployment, on January 21, 2011, the
European CtHR issued a judgment that was not specifically directed at Frontex
but which is fundamentally relevant to its role in Greece. In M.S.S. v.
Belgium and Greece the court found that Greek detention practices violated
Article 3 of the European Convention on Human Rights, which prohibits torture
and inhuman and degrading treatment, and that Greece’s asylum system was
dysfunctional. The court also concluded that Belgium too violated its human
rights obligations by knowingly exposing the applicant, an Afghan asylum
seeker, to inhuman and degrading treatment when it transferred him back to
Greece. The court said that Belgium infringed upon a right that it had
previously recognized as “non-derogable, even in cases of extreme
pressure or emergency.”

In the course of the RABIT mission in Greece, Frontex also
facilitated the transfer of migrants to centers of detention within Greece
where Human Rights Watch documented the same inhuman and degrading conditions
as those condemned by the ECtHR. Human Rights Watch contends that Frontex is
similarly responsible for having knowingly exposed migrants to treatment which
is absolutely prohibited under human rights law.

During the four months
examined in this report, RABIT patrols regularly apprehended migrants who
crossed the border into Greece and took them, sometimes in buses provided by
Frontex, to the detention centers. After patrols, border guards deployed as
part of the RABIT force reported back to their home authorities, who knew or
should have known about the conditions to which their agents were sending the
migrants. Nevertheless, no European participating state publicly raised
concerns that the activities of the patrols involved violations of the
prohibition on inhuman treatment, and none withdrew from the mission.

In December 2010, during the RABIT deployment, Human Rights
Watch visited detention centers in the Evros region of Greece and found that
the Greek authorities were holding migrants, including members of vulnerable
groups such as unaccompanied children, for weeks or months in conditions that
amounted to inhuman and degrading treatment.

We found overcrowding to be a common problem in detention
facilities in the Evros region. In Tychero, Feres, and Soufli, women were held
in the same cells with men. The Feres police station held 97 detainees at the
time of our visit, though the police said its capacity was 30. A 50-year-old
Georgian woman detainee said, “You cannot imagine how dirty and difficult
it is for me here….It's not appropriate to be with these men. I don't
sleep at night. I just sit on a mattress.”

In Fylakio, by contrast, the authorities separated men from
single women but detained unaccompanied children together with unrelated adults
in large, overcrowded cells. Sewage was running on the floors, and the smell
was hard to bear. Greek guards wore surgical masks when they entered the
passageway between the large barred cells.

Human Rights Watch’s observations and the testimonies
we gathered on detention conditions in Evros in December 2010 were consistent
with our previous reports on conditions in Greek migrant detention centers
dating from 2008 and those of other organizations which have been monitoring
and documenting the conditions of detention for migrants in Greece. In a
January 2011 review of these reports the ECtHR concluded:

All the centers visited by bodies and organizations that
produced the reports … describe a similar situation to varying degrees of
gravity: overcrowding, dirt, lack of ventilation, little or no possibility of
taking a walk, no place to relax, insufficient mattresses, no free access to
toilets, inadequate sanitary facilities, no privacy, limited access to care.
Many of the people interviewed also complained of insults, particularly racist
insults, proffered by staff and the use of physical violence by guards.

During the RABIT mission Frontex also provided personnel who
conducted nationality-determination screenings that were, in effect,
rubber-stamped by the Greek authorities. These screenings determine
detainees’ country of origin in order to facilitate their deportation.
Although these screenings were not intended to identify international
protection needs, in reality they were usually the most substantive interviews
detainees had before being deported. Given the formidable barriers to
lodging asylum claims in Greece at that time (particularly in the Evros
region), the exclusive enforcement emphasis of these interviews appears to have
contributed to the protection gap in the Evros region, including the risk that
genuine refugees might not be identified and would be subjected to
refoulement.

This report argues that Frontex activities in Greece do not
meet the standards set out in the EU’s Charter of Fundamental Rights, by
which Frontex is bound. Since the ban on participation in activities which
would expose individuals to inhuman and degrading treatment is absolute,
the onus is on the EU to work with Greece to rectify the situation of inhuman
and degrading conditions in detention before it co-operates with Greece in
activities that are intricately linked to the task of detaining migrants.

In this regard, Human Rights Watch welcomes the decision to
deploy European Asylum Support Officers (EASOs) to Greece to assist the Greek
authorities in establishing a working asylum system and that EASO has made
Greece a priority for 2011. Human Rights Watch also welcomes amendments that
are expected to establish a Fundamental Rights Officer (FRO) within Frontex and
a Consultative Forum to assist the agency in fundamental rights matters— though
we have reservations about proposed amendments to the Frontex Regulation that
would expand and operationalize its mandate.

These measures alone, however, are not sufficient.

In order to comply with human rights obligations not to
expose migrants to the inhuman and degrading conditions in the Evros region,
Frontex should immediately make its engagement in border enforcement operations
in Greece contingent on the placement of apprehended migrants in facilities
with decent conditions, which could be achieved in the short term by
transferring irregular migrant detainees to other areas of Greece where
detention standards are acceptable, such as on Samos Island, or making
detention spaces available in other places in the EU where conditions meet
international and EU standards.

Furthermore, all states that participate in Frontex and
contribute border guards and material support also bear responsibility and
incur liability for human rights violations by virtue of their involvement in
Frontex activities. All participating states are bound by the European
Convention on Human Rights (ECHR), and participating EU member states are also
bound by the EU Charter on Fundamental Rights. Each participating state
should carefully review its co-operation under the auspices of Frontex with a
view to assessing the risk that such co-operation facilitates the violation of
fundamental rights

While the primary focus of this report is on Frontex and its
responsibility not to be complicit in human rights violations, it is not meant
to absolve the Greek authorities from their responsibilities. Since 2008, Human
Rights Watch has published three reports documenting Greek violations of the rights
of refugees, asylum seekers, and migrants. Several other organizations have
published similar reports. Greece’s well documented failure not only to
provide decent conditions of detention for migrants but also asylum for
refugees has been acknowledged by the Greek government, which should take
immediate steps to improve detention conditions and implement the recently
announced reforms of its asylum system.

As new migration crises emerge in the Mediterranean basin
and as Frontex’s responsibilities expand, there is an urgent need for a
shift in EU asylum and migration policy from an enforcement-first policy to a
protection-first policy.
This is not only legally required but is a worthy and achievable approach for
the EU, its agencies, and member states to take in addressing real problems
that are susceptible to real—and principled—solutions.

Key Recommendations

To the European Commission, the European
Parliament and the European Council

Amend the Frontex Regulation to make explicit, and thereby
reinforce, the obligation not to expose migrants and asylum seekers to
inhuman and degrading detention conditions.

Amend proposed Frontex Regulation Art. 26a to empower
the Fundamental Rights Officer to refer Frontex to the Commission for
investigation and where appropriate infringement proceedings in the event
that the Frontex executive director fails to suspend operations despite
persistent and serious violations of the Charter and/or in the event that
members states and their agents persistently violate the Charter during
Frontex operations.

To Participating European States

Suspend any participation in Frontex operations that fail
to adhere to binding international human rights standards.

Instruct border guards deployed on Frontex missions on
their obligations under international law. Ensure that border guards are
trained and conversant regarding all rules and standards pertaining to the
transfer and treatment of detainees.

To the Frontex Management Board

Suspend the deployment of EU border guards to Greece
unless migrant detainees can be transferred to facilities elsewhere in
Greece (or outside of Greece) that meet EU and international standards or
until the conditions of detention in the Evros region where migrants are
currently detained are improved and no longer violate European and
international standards.

Intervene with Greek officials and monitor compliance to
ensure that migrants apprehended by guest guards are transferred to
detention facilities that comply with European and international standards.

Conduct thorough assessments of the risk that human rights
violations may occur before engaging in joint operations or deploying
RABIT forces.

To Greece

Implement the recently adopted asylum reform package as
fully and as quickly as possible.

Ensure access to asylum procedures at the border and in
the border region.

Reduce overcrowding by using alternative facilities and
alternatives to detention as much as possible.

Immediately improve detention conditions, and immediately
create open reception centers for asylum seekers and members of vulnerable
groups, such as children.

Methodology and Scope

Human Rights Watch conducted research for this report in
Greece from November 28 to December 4, 2010 and from February 13 to February
17, 2011. We visited the following places of detention in Greece: Venna
detention center; Fylakio detention center; Tychero police station detention
cells; Feres police station detention cells; Soufli police station detention
cells. Outside of detention, we interviewed migrants living in the city of
Athens.

Two Human Rights Watch researchers conducted 65 individual
interviews with migrants, refugees, and asylum seekers in Greece. Interviews
with migrants, refugees, and asylum seekers were conducted directly in English,
Arabic, Russian, and French. We also conducted interviews with the aid of
interpreters in Dari, Pashtu, and Persian.

Human Rights Watch interviewed detainees from various
nationalities including 14 Iraqis, 10 Iranians, and smaller numbers from
Afghanistan, Pakistan, Eritrea, Syria, Tunisia, Morocco, Palestine, Sudan,
Algeria, Cameroon, Georgia, Sri Lanka, and Turkey. The interviewees
generally were males in their twenties or early thirties. Most were traveling
singly and not part of family groups. We did however interview 7 women and 12
children from ages 14 to 17.

Individual interviews averaged about 30 minutes but some
lasted well over one hour. In some cases Human Rights Watch picked out
interviewees in detention and reception centers from among those who indicated
a willingness to be interviewed after we made a group presentation. Outside of
detention centers, local nongovernmental service providers and migrant
community members helped to identify interviewees. Interviews were conducted in
privacy with no third parties present other than an interpreter. Where a family
member was present, this is indicated in the text.

In all cases, Human Rights Watch told interviewees that they
would receive no personal service or benefit for their testimonies and that the
interviews were confidential. All names of refugee and migrant interviewees are
withheld for their protection and for the protection of their families. The
notation used in this report uses a letter and a number for each interview; the
letter indicates the person who conducted the interview and the number refers
to the person being interviewed. All interviews are on file with Human Rights
Watch.

We interviewed Frontex’s deputy executive director in
Evros and other Frontex officials in Frontex’s Piraeus office, but the
“guest guards” of participating states deployed to Greece through
Frontex indicated that they did not have permission to answer our questions
regarding their experience in Greece. We corresponded in writing with Frontex
officials during the research, writing, and editing phases of this report,
which incorporates their comments on portions of an earlier draft of this report.

I.
Background: Frontex

History

The European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the European Union,
known as Frontex (a contraction of the French “frontières
extèrieures”) was established as an executive agency of the
European Union (EU) on October 26, 2004.[1]

The EU did not conceive of the agency as a policy-making or
enforcement body but rather as a platform for cooperation between EU member states
on issues of border enforcement.[2]
Today, in describing its mission, Frontex emphasizes coordination, research,
and surveillance.[3]
As Gil Arias Fernández, deputy executive director of Frontex, told Human
Rights Watch in a meeting in the Greek town of Orestiada in December 2010:

We are always explaining what is sometimes difficult to
explain. Our role is one of a coordinator. We act as a facilitator between
states for resources. The operations are always led by the host state.[4]

There may be a good reason why Frontex’s role is
“difficult to explain.” Although Frontex has insisted it is less
“actor” than “coordinator,” it has quickly developed
into a powerful actor that plays a key role in enforcing EU immigration policy.[5]
The Frontex budget has grown exponentially in recent years, reflecting this
development. From €6.2 million in 2004 (just under US$9 million),
Frontex’s budget grew to more than €88 million (or over US$120
million) in 2010.[6]
Frontex has a staff of 272 seconded national experts, temporary, auxiliary, and
contract staff, according to its web page.[7]

Through the years, Frontex has become increasingly active
through joint operations, in which it has organized European member
states’ resources for operations along EU’s external borders and at
airports.[8]
It has also coordinated increasing numbers of joint maritime operations, some
of which have involved coordination with countries of embarkation outside the
EU, such as Senegal. Many joint maritime operations, such as Frontex’s
Hera I, II, and III operations, which succeeded in dramatically reducing the
number of boat arrivals in Spain’s Canary Islands, seem to have had the
objective of preventing boats from landing on EU member state territories.[9]
This has also prevented migrants—including asylum seekers—from
availing themselves of procedural rights that apply within EU territory.[10]

In July 2007 the Frontex Regulation was supplemented by the
RABIT Regulation, which created "Rapid Border Intervention Teams"
aimed at stopping the massive arrival and entry of migrants.[11]The RABIT Regulation also authorized members of the teams to bear
arms and to use force, with the consent of the host member state.[12]

Frontex is now forming partnerships with national
border-enforcement authorities in all participating states.[13]
In Greece, Frontex not only has provided EU personnel and resources through the
RABIT deployment, but also in 2010 established an office in the Greek
coastguard headquarters in Piraeus seaport as the headquarters for all
operations in the Eastern Mediterranean area, which coordinated two joint operations,
Poseidon 2010 and Attica 2010.[14]

With the growing
reliance on Frontex operations and increasing migratory pressures on the
EU’s external borders in 2011, the Council of the European Union and the
European Parliament moved to grant Frontex more authority. In September 2011
the European Parliament and Council are expected to adopt amendments to the
Frontex Regulation that will widen Frontex’s mandate, in particular by
giving it the authority to “initiate and carry out joint operations and
pilot projects” in cooperation with the participating states.[15]

Legal Authority

There is a paradox at the heart of Frontex’s legal
existence. On the one hand, the Frontex Regulation stipulates that “the
responsibility for the control and surveillance of external borders lies with
the Member States.”[16]
On the other hand, the same regulation says that Frontex is a Community body
with “full autonomy and independence”[17]with “legal personality and exercising the implementing
powers, which are conferred on it by this Regulation.”[18]Frontex, therefore, exists both as a specter-like coordinating
manager as well as an actor with legal autonomy.

Frontex derives its legal authority from the Frontex
Regulation, which, as it existed prior to proposed amendments expected to be
adopted in September 2011, specifies that the agency’s main tasks are: 1)
to coordinate operational cooperation between member states in managing
external borders; 2) to assist member states in training national border
guards; 3) to carry out risk analyses and surveillance of external borders; 4)
to provide member states increased technical and operational assistance at
external borders when necessary; and 5) to support member states by organizing
joint return operations.[19]

The proposed amendments add additional responsibilities to
Frontex’s mandate, including assessment of member state capacity to
secure external borders; participation in control and surveillance of external
borders; technical and operational assistance at external borders, including sea
operations, especially in situations of specific and disproportionate
pressures; setting up European Border Guard Teams for rapid deployment during
operations; coordinating joint returns; developing coordinated information
systems; and assisting in the development of European border surveillance and
information-sharing systems.

As the amendments were being drafted, the European
Parliament’s Committee on Foreign Affairs commented in early 2011 on the
expansion of powers that the amendments would give Frontex:

This proposal would provide the Agency with a reinforced
role in preparing, coordinating and implementing operations with special
regard to the sharing of tasks with EU Member States, namely in terms of
deployment of human resources and technical equipment. Besides, with this
proposal, Frontex’s internal and external mandate and powers would be
significantly enhanced. The Agency would be able to co-lead border patrol
operations with EU Member States, deploy liaison officers in third countries,
coordinate joint return operations, launch and finance pilot projects.[20]
(Emphasis added).

In light of these possible developments, the committee
expressed concern at the time about Frontex’s lack of transparency and
accountability and questioned whether the proposal would provide sufficient
oversight of Frontex, including its human rights performance:

The overall question of responsibilities between Member
States’ officers, the host Member State border officers and
Frontex’s personnel remains unclear and ambiguous in the
Commission’s proposal and should be treated by the lead committee of
Parliament together with open questions with regard to the component body for
complaints in case of violations of human rights of migrants.[21]

One of the
amendments expected to be adopted in September 2011 places responsibility on
home member states to discipline guest officers engaged in Frontex activities
who violate fundamental rights or international protection obligations but also
authorizes the executive director of Frontex to suspend joint operations or
pilot projects if he “considers that violations concerned are of a
serious nature or likely to persist.”[22]

Although the Frontex Regulation, as it existed prior to the
amendments expected to be adopted in September 2011, did not include a
provision that explicitly protected refugees and vulnerable groups, it did say
that Frontex "respects the fundamental rights and observes…the
Charter of Fundamental Rights of the European Union."[23]
The expected approval of the proposed amendment to the Frontex Regulation in
September 2011 will remedy this lacuna in Frontex’s explicit protection
regime both by directing Frontex to draw up a “code of conduct” to
guarantee respect of fundamental rights with particular focus on unaccompanied
children and vulnerable persons,[24]
and by directing that:

In accordance with Union and international law, no person
shall be disembarked in, or otherwise handed over to the authorities of, a
country in contravention of the principle of non-refoulement, or from which
there is a risk of expulsion or return to another country in contravention of
that principle. The special needs of children, victims of trafficking, persons
in need of medical assistance, persons in need of international protection and
other vulnerable persons shall be addressed in accordance with Union and
international law.[25]

The code of conduct
does not, however, address the consequences of non-compliance with the code,
leaving an accountability gap.

As an EU agency, Frontex is bound by the Charter of
Fundamental Rights of the European Union, including Article 1, providing that
“Human dignity is inviolable. It must be respected and protected;”
Article 4, providing that “No one shall be subjected to torture or to
inhuman or degrading treatment or punishment;” and Article 18, providing
that “the right to asylum shall be guaranteed with due respect for the
rules of the Geneva Convention of 28 July 1951 and the protocol of 31 January
1967 relating to the status of refugees and in accordance with the Treaty
establishing the European Community.”[26]

As early as the drafting of the Frontex Regulation, some
predicted that the creation of a common border control agency would be
problematic if it did not include proper European standards on protection as
well. Thus, for example, Christian Ulrik von Boetticher, rapporteur for The
European Parliament’s Committee on Citizens’ Freedoms and Rights,
commented during the drafting process that “it is premature to set up
such an operational structure without harmonized standards on for example the
definition of the refugee.”[27]
But for the EU, “harmonized” enforcement preceded
“harmonized” protection.

While harmonized enforcement has certainly preceded
harmonized protection, the EU is moving towards a common European asylum system
with a harmonized refugee definition and procedures, but, as evidenced by
Greece, implementation still lags behind formal harmonization. The inclusion of
additional human and fundamental rights standards in the proposed amendments to
the Frontex regulation indicate progress by making explicit rights guarantees
that were previously implied.

Cooperation with Other EU Agencies

Although Frontex was not entrusted with a mandate to protect
the human rights of migrants, to its credit, on May 26, 2010, the border
enforcement agency signed a cooperation arrangement with the Fundamental Rights
Agency (FRA).[28]
The FRA is an advisory EU agency whose scope of activities includes “the
fight against racism, xenophobia and related intolerance.”[29]
A press release announced that FRA would “assist Frontex in further and
comprehensively integrating the fundamental rights approach into its
activities, as called for in numerous recent Council and Parliament
communications.”[30]

The agreement
between FRA and Frontex includes provisions allowing Frontex to obtain expert
opinions from FRA on joint operations and envisions FRA training of border
guards and Frontex staff.[31]FRA is also expected to provide guidelines on respecting rights
during deportations.[32]The agreement does not grant binding force to any of FRA’s
opinions that would control Frontex’s actions. The proposed amendments to
the Frontex Regulation, expected to be adopted in September 2011, would,
however, establish a Consultative Forum to advise Frontex on the development
and implementation of its Fundamental Rights Strategy, and directs the agency
to invite FRA, the European Asylum Support Office (EASO), UNHCR, and other
relevant organizations to participate in the Consultative Forum.

The amendment, if
adopted, will also create the position of Fundamental Rights Officer (FRO) to
report directly to the Frontex Management Board and the Consultative Forum.[33]
But the amendment does not authorize the FRO to take enforcement action if
the FRO believes persistent and serious violations of fundamental rights are
occurring during Frontex operations. This accountability gap would be
addressed by amending the Frontex Regulation to allow the FRO to refer
complaints to the European Commission for investigation and, where appropriate,
infringement proceedings if, for example, the Frontex executive director has
failed to suspend operations despite serious and persistent violations, or if
actions by members states and their agents during Frontex operations violate
the Charter.

On March 8, 2011, FRA released a critical report on the
emergency situation in Greece, including an assessment of Frontex’s role
in this emergency (see below: Greece Criticized).

Another EU agency relevant to the situation in Greece is the
European Asylum Support Office (EASO), established in May 2010 to help
coordinate and improve the implementation of asylum policies.[34]
Although EASO had not yet become operational in Greece at the time of
Frontex’s RABIT deployment, Kari Wahlström, head of the Frontex
Operational Office in Greece, told Human Rights Watch that EASO would
complement Frontex so that a balance between enforcement and protection would
be maintained.[35]EASO has also indicated in its plan for 2011 that Greece will be
a priority for the agency.[36]

On April 1, 2011, Cecila Malmström, EU Commissioner for
Home Affairs, declared that EASO teams would be deployed in Greece. This would
be the first deployment of agency teams since EASO was established.[37]
Just as Frontex has been designed not to make administrative decisions, EASO
too is not authorized to make determinations on asylum requests. Like Frontex,
EASO does not have a specific mandate to intervene directly on detention
conditions.[38]
Refugee status determination procedures and detention responsibilities remain
the responsibility of EU member states.

Because this report deals with the period of the RABIT
deployment prior to the establishment of the EASO presence in Greece, it
remains to be seen how the encouraging step of the EASO deployment will influence
reform of Greece’s dysfunctional asylum system and whether its presence
will have a salutary influence on improving conditions of detention even if
this is not specifically within EASO’s mandate.

II.
Protection Crisis in Greece

On September 21, 2010,
the United Nations High Commissioner for Refugees (UNHCR) declared the asylum
situation in Greece a “humanitarian crisis.”[39] UNHCR said that Greece’s lack of a
functioning asylum system had “important implications for the wider
EU.”[40]

Not long after the UNHCR’s declaration, on November 2,
Frontex deployed RABIT “guest officers” (as they are called by
Frontex) in the Evros region for the first time in an operation that lasted
until March 2.[41] After the RABIT
deployment ended, Frontex’s presence in Evros continued, performing the
same tasks under the title “Joint Operation Poseidon Land 2011.”[42]

The Making of an Emergency

The “humanitarian crisis” UNHCR described had
been developing for a number of years as Greece became the major gateway for
undocumented migrants and asylum seekers into the EU. This emergency developed
out of a confluence of Greece’s geographic location and porous borders,
the chronic mismanagement of its asylum system, and the fundamental problems
with its migrant detention system. But the EU added greatly to Greece’s
burden with the Dublin II Regulation, which assigns responsibility for
examining asylum claims to the first EU country in which an asylum seeker sets
foot.[43]
Asylum seekers who travel to other member states can be returned to the country
where they first entered the EU. This arrangement exposes member states on the
external borders of the EU to disproportionate responsibility for assessing the
asylum claims of irregular migrants entering the EU by land. Given
Greece’s location, Dublin II exacerbated the country’s large
backlog of asylum applications and appeals, while adding strains to its
overcrowded detention facilities.[44]

Frontex explained how Greece became the gateway to Europe in
its “risk analysis” report for 2010:

Following decreased departures from Libya and Western
Africa, Turkey has now become the most important transit country for illegal
migration…. The bilateral collaboration agreements with third countries
of departure on the Central Mediterranean route (Italy with Libya) and the
Western African route (which Spain signed with Senegal and Mauritania) had an
impact on reducing departures of illegal migrants from Africa…. As a
corollary to the sharp decreases registered in Italy and Spain, the number of
detections of illegal border crossings in Greece rose from 50% of the total EU
detections to 75% of the total.[45]

In its first and second quarterly reports of 2010 Frontex
further identified "a continued and intensified shift from the Greek sea
border to the Greek land border with Turkey."[46]
These analyses culminated in Frontex’s November 29, 2010 statement
declaring that "Greek external borders … now account for 90 percent
of all detections of illegal border crossing along the EU external
borders."[47]

Arias Fernández of Frontex explained that the
agency’s RABIT deployment was set in motion “because of a drastic
increase of numbers [of detected migrants] and because the humanitarian
situation also made the European Commission encourage Greece to ask for our
help.”[48]

Preparing for the RABIT Deployment

Frontex was well aware not only of the increase in irregular
entries but also of the deepening protection crisis in Greece. While preparing
for the RABIT 2010 deployment in Evros, a Frontex official visited Greek detention
centers in October 2010 and the agency considered the possible implications of
a land deployment in Greece and of its involvement in a broken system.[49]

The Frontex officer, Leszek Szymanski, head of the
Operational Management Component in the Frontex’s Piraeus office, visited
the detention center of Fylakio, as well as other detention centers in October
2010, and found that the facilities were overcrowded (he told Human Rights
Watch that around 700 people were detained in Fylakio at the time of his visit,
almost twice that facility’s capacity of 386).[50]
Szymanski also visited other detention facilities, including the Tychero
detention facility which, as we saw in our later visit to Tychero, houses
detainees in large, dimly lit rooms with cement beds.

Frontex’s decision to visit the detention facilities
suggests that the agency understood that their conditions were relevant to its
task. The agency told Human Rights Watch that it knew about the
“difficult” conditions since the beginning of the agency’s presence
in the area in October 2010.[51]

The conditions that existed in Fylakio at the time of
Szymanski’s fact-finding mission were indeed nothing new. Various human
rights groups, including Human Rights Watch, have repeatedly criticized
conditions in Greek detention centers as failing to meet international
standards throughout the past decade.[52]
In January 2011 the European Court of Human Rights (ECtHR) reviewed the vast
reporting literature that had accumulated on Greece since 2005, summarizing its
findings as follows:

All the centers visited
by bodies and organizations that produced the reports listed above describe a
similar situation to varying degrees of gravity: overcrowding, dirt, lack of
ventilation, little or no possibility of taking a walk, no place to relax,
insufficient mattresses, no free access to toilets, inadequate sanitary
facilities, no privacy, limited access to care. Many of the people interviewed
also complained of insults, particularly racist insults, proffered by staff and
the use of physical violence by guards.[53]

Manfred Nowak, the former UN special rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment, visited the
Fylakio detention center within days of Szymanski’s visit. The situation
he describes there on October 12, 2010 would have been essentially the same as
on the day that Szymanski was present:

Due to the high occupancy over the last months, the center
was in a very poor state at the time of the visit. When entering the building
the detainees became very agitated and initially the officers were reluctant to
open the cells. The conditions of detention were extremely poor. There were not
enough beds for each detainee forcing many to share beds or sleep on the floor.
The beds, blankets and pillows were very dirty. The sanitary installations were
in a very poor state with dirty walls, doors and water running out the
washrooms and toilets. The cells were humid and the floors dirty. The cells
were poorly lit, many ceiling lamps were broken and there was almost no natural
light. There was little space between the bunk beds allowing detainees to move
around. They had no access to a yard and outdoor exercise.

The semi-open cell for the new arrivals was in the worst
state. The bathroom appeared not to be cleaned for a long time. The toilets
were clogged causing water and feces to stand in the washroom. The detainees
defecated in the corridor of the washroom and the dirty water ran out of the
bathroom in the sleeping cell causing unbearable smell. Consequently, many new
arrivals preferred to sleep outside.[54]

During that same
time, Nowak also visited a number of police stations in Evros and found that
they appeared to operate almost exclusively as migrant detention facilities
rather than as conventional police stations. In all but one of the police
stations he visited he found that foreign nationals were “detained in
overcrowded, dirty cells, with inadequate sanitary facilities, no or
insufficient access to outdoor exercise and inadequate medical attention,”[55]
He found these conditions “to amount to inhuman and degrading treatment,
in violation of Articles 7 and10 of ICCPR.”[56]

Kari Wahlström, head of the Frontex Operational Office
in Greece, explained to us how, despite its knowledge that conditions in Greek
detention centers had been characterized as inhuman and degrading, Frontex
decided to go forward with the RABIT deployment:

The facts were known to us from the very beginning, but the
pressure on the border grew. While knowing the conditions, it was still necessary
to stop this, as the situation was not under control.[57]

Human Rights Watch considers that at the preparatory stage
in October 2010 Frontex had good reason to know that if its operations included
the transfer of migrants to Greece custody this would lead to those people
being subject to inhuman and degrading conditions in violation of fundamental
rights enshrined in international and European law.

RABIT 2010

The RABIT operation began after Greece sent a request to the
Frontex headquarters in Warsaw, as required by the RABIT Regulation. This was
not an exclusively Greek initiative. According to Arias Fernández, the
European Commission “encouraged” Greece to ask for Frontex’s
help in view of the developing emergency in Greece.[58]
Frontex responded positively to this request and sent 175 border guards to
Evros drawn from a pool of guards from other EU member states and participating
non-EU states. On November 2, 2010, the operation got underway.

In addition to the border guards, Frontex sent material support
including one helicopter provided by Romania; four buses provided by Austria,
Hungary, and Romania; five minibuses provided by Romania, Austria, and Hungary;
19 four-wheel-drive patrol cars provided by Romania, Austria, Slovakia and
Germany; nine vans with thermo-visual equipment provided by Austria, Bulgaria,
Germany, and Hungary; and three office units (portable buildings) provided by
Denmark.[59]

Minibuses and buses were used to transport migrants to Greek
detention facilities.[60]
Frontex set up the offices to use for nationality determination interviews
(“screenings”) and for questioning migrants on smuggling and
organized crime (“debriefing”) in four of the detention facilities:
Fylakio, Tychero, Feres, and Didymoteicho.[61]
Frontex also covered the expenses of the RABIT operation.

When the operation started, a Frontex press release
explained that the operation in Greece was to be exemplary from a human rights
point of view:

Observance of fundamental rights and respect for human
dignity are central components of all Frontex operations. At all stages of the
operation the highest standards of ethical conduct and professionalism are
expected from all participating officers. ‘Zero tolerance' policy to
infringement of fundamental rights will be applied throughout the operation,
particularly with regard to people in need of international protection.[62]

Greece Criticized

In March 2011, coinciding with the end of the RABIT
operation (which did not end Frontex presence in the area), Greece once again
was subject to exceptionally strong international criticism. Several prominent
human rights monitors laid out detailed accounts of inhuman and degrading
treatment and lack of access to asylum. This time, the reports documented
abuses that took place during a period in which EU agents were aiding the
perpetrators.

The Committee for the
Prevention of Torture

On March 15 the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) issued a
“Public Statement Concerning Greece.”[63]
The CPT painted a grim picture of the Greek situation of migrants and asylum
seekers in Greece.

According to the CPT’s evaluation, the Greek
government had not only failed to improve abusive conditions that CPT had
warned about as early as 1997. The CPT report also charged that the Greek
government had misrepresented the situation of migrants. According to the
CPT’s evaluation, the conditions in Greek detention facilities for
migrants may have reached their all-time worst at the height of Frontex’s
RABIT deployment:

Regrettably, the findings made during the CPT’s most
recent visit to Greece, in January 2011, demonstrated that the information
provided by the authorities was not reliable. Police and border guard stations
continued to hold ever greater numbers of irregular migrants in even worse
conditions. For example, at Soufli police and border guard station, in the
Evros region, members of the Committee’s delegation had to walk over
persons lying on the floor to access the detention facility. There were 146
irregular migrants crammed into a room of 110m2, with no access to
outdoor exercise or any other possibility to move around and with only one
functioning toilet and shower at their disposal; 65 of them had been held in
these deplorable conditions for longer than four weeks and a number for longer
than four months. They were not even permitted to change their clothes. At
times, women were placed in the detention facility together with the men.
Similar conditions existed at almost all the police premises visited by the
CPT’s delegation. In the purpose-built Fylakio special holding facility
for foreigners in the Evros region, irregular migrants, including juveniles and
families with young children, were kept locked up for weeks and months in filthy,
overcrowded, unhygienic cage-like conditions, with no daily access to outdoor
exercise.[64]

The EU Fundamental
Rights Agency

The EU Fundamental Rights Agency’s “Thematic
Situation Report of March 8, 2011” also made significant findings on the
emergency in Greece. As the FRA explained, “The situation at the
EU’s external land border between Greece and Turkey constitutes a
fundamental rights emergency. People, including pregnant women and families
with small children, are held in inhumane conditions.”

The report also specifically references Frontex.[65]
Leszek Szymanksi, the Frontex official who had visited the Greek migrant
detention facilities in Evros prior to the Frontex deployment, was in the
region when the FRA was carrying out its inspections. In light of the
cooperation agreement between Frontex and the FRA,[66]
Szymanksi accompanied FRA during some parts of its visits to detention centers
in late January 2011, including Fylakio.[67]
The agency evaluated the RABIT deployment and found its presence to have a
positive impact in some areas, for example saying that its engagement in
processing of individuals “seem[s] to have reduced the risk of informal
push-backs to Turkey for persons who have crossed irregularly into
Greece.”[68]

The FRA report is highly critical of the inhuman and
degrading conditions in detention centers in Greece, but declined to address
Frontex’s role in transferring migrants to authorities who will subject
them to inhuman and degrading detention, saying that this falls outside its
mandate:

The operational assistance provided by the EU through
Frontex covers only initial processing and does not impact on the most critical
fundamental rights concern – the inhuman conditions in which persons are
currently being held, because the reception of persons crossing the borders
irregularly is seen as falling outside the mandate of Frontex.[69]

FRA’s report on the rights emergency in Greece is a
damning one and provides a useful critique and action plan of what is wrong in
Greece. However the FRA missed an opportunity to address a significant
contributing factor to the level of detainees held in inhuman and degrading
conditions by failing to examine the role Frontex’s operations play in
transferring migrants to detention centers with conditions that the EU rights
agency characterized as inhumane.

Frontex Attempts to Reduce Violations in
Detention

Having learned of the dire situation in the detention
centers, Frontex attempted to help temporarily alleviate the crisis. Thus, for
example, the agency offered Greece tents to relieve some of the pressure in the
overcrowded detention centers. These tents, however, were found unfit for
winter conditions and thus were not used.[70]

When the RABIT deployment began, Frontex also approached the
Greek government with an idea to house some of the migrants in a military base
on one of the Greek islands.[71]
Furthermore, the agency raised the possibility that a particular sugar factory
could be renovated and made into a detention center. As of February, Frontex
informed us that these suggestions were "being processed," and that
the Greek authorities had made no decision on them.[72]

Because Frontex had demonstrated an interest in seeking
practical solutions to address the problem of migrants in abhorrent detention
conditions, Human Rights Watch wrote to Arias Fernández on December 7,
2010 urging his agency to press the Greek authorities to start transferring
migrants to empty detention centers in other parts of Greece.[73]

In a response dated December 9, 2010, Arias Fernández
repeated the position Frontex consistently takes: "We have no direct role
in the immigration or asylum systemsof member states and especially not in
detention.” He also said, however:

I raised the question of the difficult conditions in the
detention centers with the Hellenic Police authorities last week during my
visit to Orestiada. Frontex also sent a letter to the Greek Management Board
representative drawing their attention to the problem. We have also made the
European Commission aware of the situation, in order to seek possible support
from the EC to tackle this problem.[74]

Separate from the
RABIT deployment in Greece, in March 2011, Frontex adopted a “Fundamental
Rights Strategy” for its operations as a whole.[75]
The preamble to the strategy sets out that Frontex considers respect and
promotion of fundamental rights to be “unconditional and integral
components of effective integrated border management.”[76]
Indeed, the strategy takes important steps towards accountability: it notes
that the Court of Justice of the European Union (CJEU) currently has authority
to review “the legality or provide interpretation to guide the acts of
the EU Agencies which in turn are obliged to respect fundamental rights in all
their activities” and that “Frontex should therefore also take into
account the relevant EUCJ case-law in its activities.”[77]

Likewise, the
strategy states that when the EU accedes to the European Convention of Human
Rights the European Court of Human Rights will also be able to review the
actions of the EU and “Frontex should therefore also take into account
the relevant ECtHR case-law in its activities.”[78]

As well as
referring to the obligations under the Charter of Fundamental Rights of the EU,
the strategy states, “All human rights instruments adopted by the United
Nations and the Council of Europe Conventions as ratified by all the Member
States are applicable.”

The document
emphasizes that Frontex shares responsibility with member states, but
distinguishes between member state responsibility for their actions and
Frontex’s responsibility for coordinating those actions. Article 13 of
the strategy reads:

Member States remain primarily responsible for the
implementation of the relevant international, EU or national legislation and
law enforcement actions undertaken in the context of Frontex coordinated joint
operations (JOs) and therefore also for the respect of fundamental rights
during these activities. This does not relieve Frontex of its responsibilities
as the coordinator and it remains fully accountable for all actions and
decisions under its mandate. Frontex must particularly focus on creating the
conditions for ensuring compliance with fundamental rights obligations in all
its activities.[79]

III. Inhuman and Degrading Detention
Conditions

“I am originally from a land of war, but I never saw
suffering like I see here.”

—Iraqi
detainee, Tychero, November 2010

Detention Conditions

In December 2010, during the RABIT deployment, Human Rights
Watch visited detention centers in the Evros region of Greece. We found that
the Greek authorities were holding migrants, including members of vulnerable
groups, such as unaccompanied children, for weeks or months in conditions that
amounted to inhuman and degrading treatment.

Fylakio

According to Brigadier General Georgios Salamagkas, head of
the Police Directorate of Orestiada, the Fylakio migrant detention center,
located about 12 kilometers from the border in northeastern Greece, housed 450
detainees at the time of our visit,[80]while its capacity, according to the FRA, is 375.[81]
The large overcrowded cells were equipped with rows of bunk beds. Unlike in
other places (Tychero, Feres, and Soufli) the authorities here had separated
men from single women, but unaccompanied children and unrelated adults were
held together in most cells. Families were held in cells with single men. Upon
our arrival, the many detainees pressed with bodies and faces against the bars,
some of them shouting, eager to be "chosen" for an interview. The
atmosphere was tense, occasionally breaking into shouting in protest, following
a riot the previous day.

Sewage was running on the floors. According to the Greek
guards, this was because the prisoners broke the toilets, while protesting
against their conditions.[82]
The smell was hard to bear, and Greek guards wore surgical masks when they
entered the passageway between the large barred cells.

A 14-year-old Afghan boy who had been detained for 43 days
at the time we interviewed him, said, “The toilet is broken. The sewage
comes out. There's a very bad smell. If a person comes here, 100 percent he
will get sick."[83]
Another 16-year-old Afghan boy who had spent two and a half weeks detained in
Fylakio at the time of our interview said, "The bed here is dirty, really
dirty. On two beds four of us are sleeping… In 18 days they took us out
only once."[84]

Two Eritrean boys requested to talk with us together. The
17-year-old talked about his own hardships, but also told us about some of his
younger friend's problems:

There is not enough water. Sometimes we spend hours without
water, and then they give us dirty water to drink. For five days I was asking
to see a doctor but was not able to see one yet. Recently we had a strike here
because they did not provide us with access to phones or doctors. Yesterday
there were problems again, and again we went on strike. They took everyone
outside and did a search on us.

This search was violent and I was hit during the search. I
don't have shoes, as I lost them during the search. The guards asked us to take
them off and then my shoes were gone.

I left Eritrea firstly because there is nothing to eat.
Then there is also the military service. When I was interviewed, they asked me
basic questions about Eritrea. A woman asked me about the currency used in
Eritrea and about other languages spoken there. I knew the answers to these
questions. They were sitting in a container.[85]

The “container” this boy was referring to was
the Frontex office in Fylakio located in the space between the main detention
building and the outer wall.

His 14-year-old friend had already spent a longer period in
Fylakio:

I have been here 26 days, after I came from Turkey. For
three days in the beginning I was sleeping on the floor. Now I'm sharing a bed
with another five people: a Somali, a Bangladeshi, an Afghani, an Egyptian, and
one other Eritrean. We use the bed in shifts, which means that some use the bed
during the day and others during the night. In general, we are 83 people in a
room with 30 beds.

There is no way to go out for fresh air, and it is
impossible to use the toilets because they are too filthy. We don’t brush
our teeth because we do not have tooth brushes. They took our belongings from
us outside, and did not let us take them back until now. There is only cold
water and no soap. Only recently they gave us three pieces of soap and after
many days I was able to wash myself.

The worst problem is that they don't tell us how long
we’ll have to stand this. Every week they say, “One more week.”[86]

While we escorted the two boys back to the cells, the
younger boy told us that the authorities had taken his SIM card, which is the
only place he had his family's contacts. He said that Greek police tossed it on
the ground when searching him. He pointed to the courtyard and asked,
"Could you possibly go look if it's still there?"

These two boys were among a total of 120 unaccompanied
children there at the time of the Human Rights Watch visit.

A16-year-old unaccompanied Afghan boy who had been detained
in Fylakio for 17 days when we spoke with him, told us about police violence as
disciplinary punishment:

One night they took me
out and beat me. I don’t know why. They took us into the place where the
telephones are in the small room and beat us. First they were two, then two
others [joined]. It happened at night. We were four or five who were not
sleeping. We made noise; we were shouting because all people became crazy and
we were in bad conditions. They took us out because of that. It happened one
week ago. They were many. They hit me with a stick. Three or four police
officers hit me on my upper leg two or three times.[87]

Former Fylakio detainees also spoke about guard violence
there. An Iranian asylum seeker in Venna detention center told us that when the
Greek police caught him, along with two others, the police beat them in the
courtyard after they tried to escape from Fylakio. For two or three days they
could not walk.[88]

A former Fylakio detainee who was registered as a Georgian
national but said he was stateless, characterized conditions inside Fylakio
detention center, saying, “They are aggressive in Fylakio… the
police don't look at us as humans but as animals. They don't care. They just
throw the food inside [the cell] and they don't care if people kill one another
over the food. Those who are stronger eat. The others don't.”[89]

As Human Rights Watch
observed during its research visit, the main detention building in Fylakio is
in plain view of the prefabricated container that serves as the Frontex office
where nationality-determination interviews take place. People sitting in it can
see the detainees being brought in and out in security vehicles. The sounds of
protests, which also broke out during interviews we conducted, were audible
where the Frontex office is located.[90]

Tychero

Tychero is a town in the
municipality of Soufli, located about two to three kilometers from the border,
where migrants are held in a police station that had previously been used as a
train station. During our visit the Greek police were holding migrants in two
cells that were not originally designed to detain people, but looked like
storage rooms. They were poorly lit, had no beds, and were overcrowded, with
130 detainees in the facility that, according to police authorities there, had
a capacity for up to 48.[91]

Migrants had to sleep on
pieces of cardboard or directly on the concrete floor. Greek guards confirmed
to Human Rights Watch that the detainees there urinate in bottles as they do
not have access to toilets.[92]Detainees
showed us a corner where they urinated and one detainee showed us a small
backpack that showed damage apparently caused by mice. We observed guards
escorting a group of migrants from the cells to a nearby field to
defecate.

An Iraqi man who had been detained for 48 days when we spoke
with him described the situation at Tychero police station as follows:

I am originally from a land of war, but I never saw
suffering like I see here. Unless you faint they will never let you see a
doctor … There is no electricity and no water. We drink from the urinal.[93]

Feres

Feres is a town in the municipality of Alexandroupoli about
three to four kilometers from the border, where migrants are held in a police
station also not originally designed for detention. During our visit, the
police were holding 97 detainees there, even though the police themselves said
its capacity is 30. We were also told that during the summer, which is the
“high season” for migration, 120 people were held there. Men and
women were held together.

A 50-year-old woman from Georgia, who had been detained for
12 days and said she came to Greece for medical treatment, told us about her
ordeal at Feres police station:

You cannot imagine how dirty and difficult it is for me
here. It is not possible to shower. I don't know what will happen….All
the men smoke inside. There are also younger women. It's not appropriate to be
with these men. I don't sleep at night. I just sit on a mattress.[94]

Two 16-year-old unaccompanied boys from Iran and Iraq who
had spent 50 days in detention at the time we interviewed them described
conditions inside the Feres police station:

During the day I sleep. The food is bad. I bought the soap
[myself]. It costs one Euro. I have no toothpaste, and no clothes to change.
For seven days I have been sleeping in the toilet because there is no space.[95]

Once, during the night, some of the people who were there
for a long time didn't want to sleep and chanted. The police simply came and
hosed everyone that was there. The water was cold, and the night was cold as
well.

They counted us twice a day, once in the morning and once
in the evening. When someone would not stand in line like they wanted, they
beat him with a club. Sometimes when someone remained asleep during counting
time, they also beat him.[96]

He also told us that there was a severe lack of medical care
at Feres and no doctor. He said that under these conditions, the detainees had
to try to help themselves:

There was one girl who had been poisoned, and we had to go
back to our traditional medicine, because there was no doctor. We mixed water
and salt in order to induce vomiting. [97]

A 22-year-old Iranian detainee we spoke with in Feres told
us that he was fearful that the police would beat him up because he decided to
talk with us. He also said that one night he had a fight with another detainee,
and was therefore “punished” by the police with beatings. At the
time,he said, the police decided to take out all the men in the
detention facility, and beat them all.[98]
A Greek police officer confirmed this in an informal conversation with Human
Rights Watch. He said that the detainees fight every night and that the police
enter and beat them all together.[99]

Spiridon Daskaris, the commander of the Feres detention
center, spoke openly about the difficult conditions, but explained that as
Greece was hit hard by the financial crisis, they simply did not have the
ability to provide better standards:

We owe money to laundry and food providers. The detainees
don’t have soap now, because the supermarket that has provided this is
fed up. We asked again and again. Some people buy from their own money. When we
get help it is usually not from our state but from others.[100]

Soufli

Soufli is a municipality in the Evros region very close to
the Evros River. In our visit to the Soufli police station, we once again found
an extremely overcrowded, filthy and poorly lit facility, in which men and
women were not separated. One of the Greek policemen there mentioned to the
Human Rights Watch interpreter that two days previously a woman was raped in a cell
by another detainee.[101]
Human Rights Watch inquired if Frontex knew about the allegation. We received
the following answer:

Frontex had got the information from the field about a case
of alleged rape around 5/6 November 2010; Frontex immediately approached the
Hellenic Police and asked them for internal investigation which was agreed.
Frontex received a report stating that the alleged rape case was not confirmed
by the investigation.[102]

A 17-year-old unaccompanied Iraqi boy told us of his attempt
to escape from the Soufli detention facility and how Greek police officers used
physical violence after they caught him:

Once I tried to run away. They caught me after five
minutes. They beat me after that. They beat me a lot on my neck, legs, head.
They kicked me. They didn’t beat me with a baton. For four hours they
tied my hands up; they tied my hands to the bars; for four hours; and they
threw water on me. It was in Soufli. Then they took me to the place where the
other detainees were. I was beaten for 30 minutes or one hour. Everybody beat
me. I was not taken to the doctor. I was injured on my fingers, and my nail
fell off [shows us]; for two weeks I couldn’t sleep because I was in such
pain.[103]

As with the other police stations and detention centers, the
atmosphere was tense at Soufli during our visit. When we presented ourselves
for the last time before leaving, making sure that there were no detainees
there who still wanted to talk with us, one person shouted: "I don't want
to speak about human rights. There are no human rights here. This place is a
grave!"[104]

Access to Asylum

Detainees told Human Rights Watch that it was difficult to
lodge an asylum claim from the detention facilities in Evros. The difficulty in
filing asylum claims should be considered in light of the abusive detention
conditions. Detainees consistently expressed fears that if they requested
asylum, they would remain detained in such conditions for longer periods of
time and that it was impossible to receive refugee status in Greece. This deterred
them from lodging asylum claims. This 17-year-old Iraqi boy’s account
shows how detainees’ fears are often accompanied by a lack of basic
information about what seeking asylum means and how long the process will take:[105]

One Iranian requested asylum, waited for a hundred days in
detention, and was rejected. Then he sewed his mouth … That’s why I
didn’t ask for asylum….I heard that those who request asylum
don’t get any decision and have to wait for ten years.[106]

In Soufli an Iraqi man approached us and asked us to help
him file an asylum claim. When we told the Greek policeman standing nearby that
the person wished to file a claim, the police officer replied to him through
us: “Tell him if he asks for asylum it will take a very long time. Until the
first decision comes it takes one and half months. If it’s denied and
then he wants to appeal it takes more months. And he will stay here.”[107]

In Venna, another Iranian detainee said he wanted to apply
for asylum, but that “the police say that if we ask for asylum we will
stay for more than six months.”[108]

The police commander in Tychero detention center confirmed
that applying for asylum extends the duration of detention in inhuman and
degrading conditions:

Some have applied for asylum. They have to be sent to
Alexandroupolis. Most do not apply for asylum, but wait to get to Athens after
they get their papers. Applying for asylum makes the detention longer. We have
to examine the requests. If the requests are rejected the applicants are either
readmitted or deported through their embassies.[109]

IV. Frontex’s Enforcement Role in
Greece

Even though Frontex is not formally a decision maker, in
practice it appears that guest officers deployed with Frontex were indeed
making de facto decisions on the ground in Evros as they were involved in
extensive activities, including the apprehension of migrants and in making
nationality-determination recommendations that were, in effect, rubber-stamped
by the Greek authorities.

Apprehensions

A principal purpose of the RABIT
deployment was to enhance Greece’s capacity to control its land border
with Turkey. Assisting Greece to apprehend undocumented migrants was one of the
central ways that Frontex contributed to this goal. This included the
deployment of 175 guest border guards as well as providing Greek police with
equipment, funding, and advice on enforcement tasks.

View
of the Feres detention center from the balcony where RABIT border guards were
taking their break.

Arias Fernández told Human Rights Watch that Frontex
goes on patrols, accompanied with at least one Greek officer. He said that in
these patrols the “guest officers” are authorized to apprehend
migrants and then transfer them to Greek counterparts who run the
detention facilities. In our meeting with three Frontex officials, Kari
Wahlström, Leszek Szymanski, and Gerald Baumkirchner, we raised the
concern that when guest border guards apprehend migrants and transfer them to
Greek detention centers they are thereby exposing the migrants to inhuman and
degrading treatment. The three Frontex officials confirmed that the border
guards from the RABIT deployment did, in fact, participate in such patrols, and
Baumkirchner responded by saying:

You say that we should be doing things that we are not
doing, or that we should stop doing what we are doing. But this is the
procedure. We do things according to our mandate.[110]

As indicated above,
these Frontex officers confirmed that they were aware of the generally
unacceptable detention conditions that have been extensively documented.[111] The physical locations where Frontex border
guards work also make it clear that they, too, are familiar with these
conditions. In Feres detention center, for example, Human Rights Watch met with
several Slovak border guards who were sitting there during the day. Although
they were unwilling to engage with Human Rights Watch in substantive
discussions about their work, they acknowledged that they participate in
apprehensions and said they were fully aware of the situation at the detention
center. As they were waiting for their nighttime patrol as part of the RABIT
force, the Slovak border guards sipped coffee and chatted on a balcony
overlooking the open-air part of the detention area, from where the detainees
were visible.

Although Frontex has explained that RABIT border guards are
under “instructions” from Greek authorities,[112]
a strict chain of command is not evident when guest guards deployed by Frontex
patrol alongside the Greek police. Although the Frontex Regulation holds that
border guards participating in RABIT "shall wear their own uniform while
performing their tasks,"[113]
officials in the Frontex Operational Office in Piraeus explained that they are
not under the command of their home authorities. Nevertheless, in some cases,
they report back to their home authorities after going on patrol. During RABIT
patrols guest border guards work under a Greek "shift leader," who is
supposed to bear legal responsibility if anything goes wrong.[114]
However, when asked if a shift leader is the commander of the patrol, Szymanski
said:

The RABIT patrols are without a commander, but the shift
leader leads the patrols. In comparison with a commander, a shift leader is
slightly less high in the hierarchy. The shift leader is always Greek. He gives
the running orders for the patrol. The member states are not involved in the
patrol plans….They [the guest officers] don't have any contact with the
member states during the shifts.[115]

In the absence of a clear agreement that displaces Greek authority
over the patrols, primary responsibility for what happens during the patrols
would normally fall on the Greek authorities because the patrols take place on
Greek sovereign territory.

Nationality-Determination Interviews

Frontex’s involvement in border-enforcement includes
providing personnel who conduct nationality-determination interviews, often
referred to as screenings. The purpose of these interviews is to determine the
interviewed person’s country of origin in order to facilitate his or her deportation.
The screenings are conducted in detention facilities in Evros. Human Rights
Watch observed three nationality-determination screenings conducted by one
Frontex interpreter and two Frontex country experts. We observed Greek police
bringing detainees to the Frontex team and not remaining during the course of
the interviews. The three interviews that we observed in Tychero detention
facility did not include any Greek police personnel and were carried out
exclusively by Frontex agents.

Since so few of the migrants in the Evros region (including
many who will eventually lodge asylum claims in Athens) apply for asylum there,
the nationality-determination interviews are the most substantive interview of
any kind that most migrants experience. The FRA report observed, “The
screening by the joint teams is the only extensive interview carried out with
an irregular migrant at the border, unless he/she is interviewed by Frontex to
obtain information about patterns of organized crime.”[116]

Nationality determination is important because Greece cannot
deport nationals of certain countries and, therefore, also does not detain
citizens of those countries once their national identities are established.[117]
Manfred Nowak, the former UN special rapporteur on torture, describes the
effects of this practice in his report from an October 2010 research mission in
Greece:

The length of detention was witnessed to be dependent on
the nationality of aliens. While aliens who cannot be deported (e.g. from
Afghanistan, Somalia, Pakistan) were usually released within several days with
an order to leave the country within 30 days, those that can principally be
deported often had to wait up to several months in police custody. This created
a feeling of extreme injustice and discrimination among the detainees.[118]

On January 20, 2000, Turkey and Greece signed an agreement,[119]
according to which third-country nationals as well as nationals of Greece and
Turkey who cross the Greek-Turkish border irregularly can be returned to the
country from which they came. Since the two countries signed the agreement,
they have consistently disagreed on its interpretation and application. As a
general rule, Turkey accepts back only nationals of countries with which it has
its own readmission agreements. At present, in practice, the agreement applies
to Iraqi, Syrian, Iranian, and Georgian nationals.[120]

Irregular migrants who are not deportable under the
Greece-Turkey readmission agreement may still be deported directly to their
home countries. This can only happen if that country recognizes the deportee as
their own national. There are particular countries, including some that do not
have diplomatic missions in Greece, which do not cooperate with Greece in
facilitating the deportation of their citizens.

As the commander in Tychero detention center explained,
nationality determinations are a decisive factor affecting the duration of
detention in these facilities because they also determine whom it will be
possible to deport:

Keeping people depends on nationality. If they are
nationals of a country neighboring Turkey, we apply for readmission. That can
take up to six months. To nationals of other countries we give papers that tell
them they have to leave the country within 30 days—after two or three
days when the public prosecutor decides that they will not press charges.[121]

Because certain nationalities cannot be deported, some
undocumented migrants claim to be members of these groups. Frontex’s
nationality-determination screenings are meant to address this phenomenon.[122]

Although these screenings
are not intended to identify international protection needs, in reality they
are usually the most substantive interviews detainees have before being
deported. Given the formidable barriers to lodging asylum claims in Greece
(particularly in the Evros region),[123] if these interviews fail to facilitate access to
the asylum process, they can result in the deportation of genuine refugees. A
17-year-old boy from Syria whom we met in Fylakio had what appeared to be a
credible claim as a refugee. Despite alleging that he had been subject to
persecution in Syria, he told Human Rights Watch that he did not want to apply
for refugee status because the Greek police had told him that this would
prolong his detention. He also said that the police had recorded his date of
birth as two years older than he told them, thus rendering him as an
“adult,” despite him stating that he was a child. Out of fear,
misinformation, and distrust he initially lied about his national identity:

My brother had political problems in Syria, and therefore
spent a long time as a political prisoner in Syria. The Mukhabarat
[secret security police] also took my father and spoke with me as well. I also
had bad economic problems and often did not have enough to eat in Syria.

I was 24 days in Venna.
The Greeks already released all the people that came with me, and I don't know
why they are continuing to hold me here. The smugglers told me to write down
that I'm Palestinian, but now I'm still here.

My registration was processed by three people including one
translator. In the beginning I wrote down that I'm Palestinian. The translator
started by talking with me in Arabic, but then switched to Kurdish. I told them
that I'm 17 years old but for some reason they registered me as 19 years old.

Then after a few days I admitted that I'm Syrian, because I
couldn't take it any longer.

Policemen told me that if I will apply for asylum, I will
never get out of here. I therefore do not want to submit a request for refugee status.
I was here 45 days and no one spoke with me about refugee status. There are
people here who asked for refugee status and are here for 55-60 days.

I certainly do not want refugee status in this country.
They are treating us worse than animals— there is not even enough water
here for us to drink. We are almost never taken outside. Sometimes they take us
for just a few minutes. They treat us with violence.[124]

Because these are, in practice, the only substantive
interviews most migrant detainees in the Evros region have, they may also
influence whether people who may in fact have legitimate refugee claims
actually lodge claims for asylum. The Syrian boy believed that asking for
asylum was not an option because it would mean extending his stay in intolerable
detention. This boy was screened to determine his nationality but, as he said,
“no one spoke with me about refugee status,” and he was not able to
challenge his age determination.

We do not suggest that the failure to protect in this
instance lies exclusively with Frontex nationality-determination screeners, but
that the manner in which nationality-determination screenings operate in the
Evros region is indicative of a misplaced emphasis on enforcement by all
authorities involved in this process such that the protection needs of a
self-identified unaccompanied child appear not to have been identified. The
absence of any non-adversarial interview to inform this boy of his rights, to
elicit his story of feared persecution, or to determine his best interests
as a child—in combination with inhuman and degrading detention
conditions—left him to make ill-informed decisions that potentially
exposed him to risk of serious harm.

The Fundamental Rights Agency report points to the
possibility of refoulement based on the combined lack of protection mechanisms
and unbridled enforcement mechanisms, including the Frontex’s
nationality-determination procedures:

While the Greek authorities are responsible for the
readmission process, the fact that no system exists to determine if a person
proposed for readmission is indeed in need of international protection, also
puts the European Union at a grave risk: EU assistance is provided to determine
nationality and hence to facilitate readmission without having a parallel
assistance provided to identify whether persons to be readmitted are in need of
international protection.[125]

It was not clear whether or how detainees can challenge the
nationality-determination interviews, how the determination is recorded, or how
errors in nationality determination might be identified and corrected, short of
a country of presumed nationality not accepting the person back.

Given the impact of Frontex nationality determinations on
crucial issues such as length of detention, deportation, and asylum, the
question arises at what point the Greek authorities accord Frontex’s
nationality determination the force of an administrative decision and whether
and how a person can challenge or appeal this decision. The Greek police
personnel we discussed this with also told us that they treat Frontex’s
nationality-determination screenings as determinative. The police commander in
Tychero said:

Frontex screens alone, and then they give the dates and
papers. The police don't do screenings. We talk with them in English or Greek,
but very much rely on the information that Frontex gives us.[126]

Spiridon Daskaris, police commander at the Feres detention
center, provided a similar account:

The screening process is a Frontex process…. If
someone says he’s from Palestine, they must know Palestine. They must
know where it is and the map. They ask, “Who is your president? Where is
your capital city?” They tell them: “you declare that you are
Palestinian—say the truth.” They also try to get information on
facilitators [smugglers].[127]

Georgios Polyzoidis, head of Alexandroupolis police
directorate, emphasized that Frontex does the screenings and that the Greek
authorities accept their nationality determinations:

Screenings are done by Frontex, we follow their opinion.
But if the migrants insist on their identities they undergo another screening
and sometimes even a third one. Only Frontex does the screenings. The
screenings take no more than two months.[128]

Frontex maintains that their nationality determinations are not
binding but rather are “presumptions” that the Greek government can
accept or reject when it tries to deport people. As Arias Fernández put
it:

The screening is not certain. The only way to know for sure
where someone is coming from is when the country of origin confirms. Depending
on the presumption, we request from countries confirmations and removal. The
only thing we do is provide the template. The Greek authorities also have to be
present in the interview. We make presumptive determinations for about 80
percent of the migrants, whereas for about 20 percent of them we don’t
make presumptions at all.[129]

From what we saw however during one full workday chosen at
random at Tychero, the Greek authorities, in practice, are not necessarily
present in the interviews and rely exclusively on Frontex to make the
nationality determinations. In a letter to Human Rights Watch that challenges
this observation, Frontex’s Arias Fernández said, “The
participation of Greek police officers was constant in most of the screening
and de-briefing activities. It could have happened however that in a few cases
Greek officers, due to urgent operational needs, were called to perform other
duties, leaving the screening/de-briefing room for a certain time.”[130]

With the Lisbon Treaty, which entered into force on December
1, 2009, the Charter of Fundamental Rights of the European Union became binding
law on all European Union agencies.[131]
Frontex’s authority to act, therefore, is not unlimited, but rather is
fettered by the Charter. Article 18 guarantees "the right to asylum"
and Article 4 of the Charter states, "[N]o one shall be subjected to
torture or to inhuman and degrading treatment or punishment."[132]
Article 3 of the European Convention on Human Rights (ECHR) also guarantees the
right not to be treated in a degrading or inhuman way, using the exact same
language.

Under these standards, Frontex’s activities may be
subject to review by the Court of Justice of the European Union (CJEU) for
their adherence to fundamental rights norms, as acknowledged by Frontex in its
Fundamental Rights Strategy.[133]

Human Rights Watch believes that Frontex has fallen short of
its obligations to respect the absolute prohibition on exposing individuals to
inhuman and degrading treatment as a result of its cooperation with Greek
authorities in detaining migrants in Greek detention facilities where the
conditions violate European and international human rights standards.

In this chapter we analyze Frontex’s violation of the
prohibition of inhuman and degrading treatment against the most relevant
analogy to Frontex’s activity already discussed by the European Court of
Human Rights (ECtHR) in, M.S.S. v. Belgium and Greece. In this case, the
court said that Belgium violated the prohibition by returning an Afghan asylum
seeker to Greece.[134]

Transferring Migrants to Known Abusive
Conditions of Detention

As mentioned previously, in the case of M.S.S. v. Belgium
and Greece, the ECtHR found that detention conditions of migrants in Greece
violate article 3 of the ECHR, which states, "No one shall be subjected to
torture or degrading treatment or punishment."[135]
Particularly important is one clause in the court’s ruling. After describing
detention and living conditions in Greece in detail, the court determined:

Based on these conclusions and on the obligations incumbent
on the States under Article 3 of the Convention in terms of expulsion, the
Court considers that by transferring the applicant to Greece the Belgian
authorities knowingly exposed him to conditions of detention and living
conditions that amounted to degrading treatment. That being so, there has been
a violation of Article 3 of the Convention.[136]

The court’s jurisprudence has reiterated that the
prohibition of inhuman and degrading treatment is uniquely uncompromising.[137]
In June 2010 in Gäfgen
v. Germany , the court articulated this absolute prohibition:

Article 3 of the Convention enshrines one of the most
fundamental values of democratic societies. Unlike most of the substantive
clauses of the Convention, Article 3 makes no provision for exceptions and no
derogation from it is permissible … even in the event of a public
emergency threatening the life of the nation.[138]

Although Frontex rejects any responsibility for what happens
to migrants in detention in Greece because it has no mandate over that
detention, Human Rights Watch maintains that such a mandate is not the basis on
which liability is incurred. Not having the mandate to intervene in abusive
detention centers does not absolve Frontex from responsibility and liability
where it co-operates in activities that contribute to exposing detainees to the
abuses that occur in them.

As the ECtHR has made clear, although the human rights
situation in a detaining country must be assessed to determine whether
prohibited treatment is likely to occur, liability for violations under the
ECHR will be incurred by a sending party “by reason of its having taken
action which has as a direct consequence the exposure of an individual to the
risk of proscribed ill-treatment”[139]

In M.S.S. v. Belgium and Greece the court
emphasizes that there are two components to the violation of the prohibition of
inhuman and degrading treatment: 1) taking action that in fact
contributes to the exposure of a person to inhuman and degrading treatment; and
2) having knowledge that the action will have that result. Both these
conditions are necessary for such a violation to occur. Neither of them alone
is sufficient.

Frontex consistently and repeatedly took action during RABIT
2010 that exposed migrants and refugees to inhuman and degrading treatment in
the detention facilities in Evros. Most notably, this occurred when border
guards participating in Frontex patrols apprehended migrants that they knew
would be held in facilities where the conditions were inhuman and degrading.
Nearly 12,000 migrants were apprehended and transferred to the Greek facilities
during the RABIT deployment.[140]
Of course guards deployed by Frontex neither apprehended nor transported all of
these migrants, but the agency directly or indirectly had a hand in their
apprehension and transfer to detention centers and, thus, in their subsequent
detention in inhuman and degrading conditions.

As documented in this report, upon apprehending migrants and
transferring them to Greek custody, Frontex personnel knew or should have known
what the conditions were in the detention facilities where these migrants would
be detained.

Frontex sent a mission to visit detention facilities before
the start of the RABIT deployment, which witnessed sub-standard conditions, and
Frontex addressed the Greek government to change such conditions, once again
reflecting knowledge of inhuman and degrading conditions.[141]
Leaving no doubt about its knowledge, Frontex wrote to Human Rights Watch on
March 29, 2011, saying:

Frontex staff was constantly present in the Evros area in
October 2010 in the framework of the ongoing projects JO Poseidon 2010 Land and
Attica 2010. Having put in place the operational reporting systems and regular
visits, Frontex management was aware about the difficult conditions in the
detention facilities.[142]

That Frontex decided despite this knowledge of
“difficult conditions” to cooperate with Greece in exposing
individuals to inhuman and degrading treatment can only be regarded as a breach
of its legal obligations to respect the prohibition on inhuman and degrading
treatment.

According to an article
in the German magazine Der Spiegel, German police officers deployed as
part of RABIT, stationed in Evros, criticized the harsh treatment of migrants. The
article documents that the police officers saw migrants being forcefully
handled and sometimes driven by gunshot into mine fields. The German officers
reportedly added that after being arrested, people were placed in vans without
seats or windows, and transported to detention centers where they were held in
“absolutely degrading” conditions.[143] The article said, “Because such methods
and situations violate German law, the officer in charge has ordered that
German officers no longer take part in certain assignments.”[144]

Der Spiegel quotes a German Federal Ministry of the
Interior spokesman as saying, “Germany is watching the
developments with concern and has already demanded that Greece improve the
situation of refugees.”[145]
In our meeting with Frontex in their Piraeus office, we asked for their
response to the report, and they claimed that the article was misleading.
Gerald Baumkirchner, a Frontex officer present in the meeting, responded:

We cannot expect that work styles will be the same. They
[the German “guest officers”] compared what they saw with what they
know from home….But the other issues, regarding human rights violations,
we made clear that these will not be tolerated.[146]

When we presented our preliminary conclusions to the three
Frontex officers who met with us, they expressed concern about detention
conditions in Greece and explained that they had voiced that concern to the
Greek authorities.[147]
They also explained that their mandate does not allow them to do more, even
though, as the head of the office, Kari Wahlström, explained, sometimes
they would like to.

Frontex’s most common and consistent argument is that
detention falls outside its mandate, a position reiterated in a letter to Human
Rights Watch in May 2011.[148].
Frontex’s disavowal of any responsibility for exposing migrants to human
rights violations when its officials both on the ground and at the highest
levels were fully knowledgeable about the direct consequences of its actions is
inconsistent with the agency’s positive statements about the centrality
of respect for fundamental rights and freedoms in its operations.

On the institutional level, Frontex has considerable discretion
in planning its operations and, therefore, ought to take into account whether
these operations are consistent with the principles of the “Fundamental
Rights Strategy” announced by the agency just as it was transitioning
from the temporary RABIT deployment to a longer-term joint operation on the
Greek border.[149]
If Frontex assesses that its actions are likely to fill already overcrowded
detention facilities and that those detention facilities do not meet minimal
standards, then it should conclude that the “risk” in terms of
involvement in human rights violations is too high.

In conclusion, Frontex’s activities that facilitated
the detention of migrants in Greek detention centers during the RABIT
deployment violated the prohibition on inhuman and degrading treatment. As such,
all such activates should immediately be suspended until measures are taken to
ensure that the absolute prohibition on degrading treatment is not violated.

The consequences of FRONTEX suspension of
activities in Greece

In response to Human Rights Watch’s call for
suspension of its activities that contribute to migrant detention in Greece,
Arias Fernández, the deputy executive director of Frontex, replied:

Frontex has a legal obligation to respond to a request by a
Member State for a RABIT operation if conditions are truly an emergency. In the
case of Greece they were—and to say no would have been irresponsible. If
Frontex had followed the course of action recommended by HRW and let Greece
deal with the emergency on its own, how would this have helped the situation?
Would the migrants have been in better conditions? Or is HRW suggesting that
border controls should simply have been lifted and those wishing to enter the
Schengen area irregularly via Greece have been left free to do so?[150]

While Frontex may have a legal obligation to respond to a
request by a member state for a RABIT operation in an emergency, the response
should not be “at all costs.” The response must still comply with
the binding obligations to respect fundamental rights—whether under the
EU Charter or the ECHR. Therefore Frontex cannot lawfully engage in activities
which violate the absolute prohibition on torture and inhuman and degrading
treatment.

As the ECtHR has re-iterated on multiple occasions, no
circumstances, no behavior of the victim (such as illegal border crossing), or
even an emergency “threatening the life of the nation” (which the
migrant emergency was not) justifies resort to use of inhuman and degrading
treatment. For migrants who are held in the appalling conditions of Greek
detention centers, whether they were initially detained by Frontex patrols or
by Greek border guards operating alone is irrelevant. To the extent that the
presence of “guest” border guards has curbed any other illegal
practices such as unlawful push-backs or physical abuse of detainees by Greek
agents, then that monitoring role could have been performed without actual
assistance in the apprehension and transfer of migrants to inhuman conditions.

Frontex and participating states should have explored other
options at the time of Greece’s request for a RABIT deployment. For
example they could have considered detaining irregular migrants elsewhere in
the Schengen area where conditions were compliant with EU standards, including
other areas of Greece where detention standards are acceptable, such as on
Samos Island, which Human Rights Watch suggested to Frontex at the time.[151]

Alternatively, deployment of Frontex patrols could have been
made conditional upon the EU and Greece taking the necessary measures to ensure
that any migrants detained would not be held in inhuman and degrading
conditions. Human Rights Watch has not seen evidence that these or any other
options were ever even entertained. Indeed it appears that neither Frontex nor
participating states required that Greece observe even the most basic of human
rights obligations—those related to treatment of detainees and access to
asylum—before agreeing to the Frontex deployment. Human Rights Watch
urges Frontex and participating states to urgently consider alternatives to
providing help to Greece which ultimately only serves to detain more migrants
in well-known inhuman conditions.

VI. The Fragmentation of EU
Responsibilities

Member State Responsibility

Although participating states did not exercise operational
command over their border guards deployed with Frontex’s RABIT 2010, they
were nonetheless accountable for human rights violations that arose as a result
of their co-operation with Greece. In several cases, the European Court of Human
Rights (ECtHR) has established that the delegation of state powers to
international organizations is limited by the requirement that international
organizations adhere to human rights norms. Thus, when agents of participating
states knowingly transfer migrants to inhuman and degrading treatment, those
countries, too, are liable for violations of their international obligations.

EU member states and other participating European states,
many of which have stopped transferring migrants to Greece under the Dublin-II
agreement in the wake of M.S.S. v Belgium and Greece, should not turn a
blind eye to what their border guards are doing while deployed under the
auspices of an EU agency.[152]
That RABIT border guards wear their own national uniforms underlines that they
act in the name of their home countries. In order not to be complicit in
inhuman and degrading treatment of detainees, participating states should
condition future involvement in RABIT and similar deployments on there being no
co-operation in activities which will lead to the ill-treatment of detainees.

Frontex and Greek Responsibility

In its analysis of Greece’s failures to address the
protection emergency in Evros, the FRA goes into some detail about what it
calls “the fragmentation of responsibilities for migration” in the
Greek government.[153]
The agency makes some important points on the lack of clarity on the
coordination and the division of labor among several government bureaus. But
the fragmentation of responsibilities is not limited to the Greek domestic
authorities. It can also be applied to the division of labor among domestic and
international actors.

Traditionally, sovereign states have the primary
responsibility for ensuring human rights. On the other hand, Frontex has
focused solely on enforcement. During RABIT 2010 this EU agency operated
alongside a Greek sovereign authority that purportedly had sole responsibility
for protection but that was not fulfilling its obligations to provide
protection. Therefore, migrants and refugees confronted enforcement barriers
(enhanced by Frontex’s engagement) without the requisite human rights and
refugee rights protections that provide remedies against unbridled enforcement.

As Frontex continues to operate in Greece, and other
places, Human Rights Watch believes such an unbalanced and unaccountable
situation is unsustainable and dangerous for migrants, asylum seekers, and
refugees.[154]

Recommendations

To the European Commission, the European
Parliament, and the European Council

Amend the Frontex Regulation to make explicit, and thereby
reinforce, the obligation not to expose migrants and asylum seekers to
inhuman and degrading detention conditions.

Amend proposed Frontex Regulation Art. 26a to empower
the Fundamental Rights Officer to refer Frontex to the Commission for
investigation and where appropriate infringement proceedings in the event
that the Frontex executive director fails to suspend operations despite
persistent and serious violations of the Charter and/or in the event that
members states and their agents persistently violate the Charter during
Frontex operations.

Oblige Frontex to include: a human rights assessment prior
to engaging in future operations, including “joint operations”
and RABIT deployments; a mechanism for reporting on human rights abuses
during operations; and a mandatory human rights review at the close of
each operation.

Demand Frontex set up investigating and reporting
mechanisms for human rights violations during the course of its
operations.

Determine whether Frontex’s involvement in Evros
during the RABIT deployment and continuing with the Poseidon land
operation has been compatible with its obligations under the Charter of
Fundamental Rights of the European Union.

To
Participating European States

Suspend any participation in Frontex operations that fail
to adhere to binding international human rights standards.

Instruct border guards deployed on Frontex missions on the
obligations under international law. Ensure that border guards are trained
and conversant regarding all rules and standards pertaining to the
transfer and treatment of detainees.

Set up an anonymous whistle-blower protection system to
facilitate self-reporting of Frontex rights violations by member
states’ border guards participating in European Border Guard Teams.

Do not participate in Frontex or other migration control
operations without first independently assessing the human rights record
of the EU host country and, where applicable, the human rights records of
neighboring states outside the EU that are partners in the operation.

To the Frontex Management Board

Ensuring that Operations are Consistent with Human Rights
Obligations

Suspend the deployment of EU border guards to Greece
unless migrant detainees can be transferred to facilities elsewhere in
Greece (or outside of Greece) that meet EU and international standards or
until the conditions of detention in the Evros region where migrants are
currently detained are improved and no longer violate European and
international standards.

Accountability

Lay out reporting guidelines for border guards in future
Frontex deployments on how they should act and report when confronted with
or observing human rights violations, including ill-treatment of
detainees.

Investigate how many migrants detained by Frontex patrols
were transferred to detention centers with inhuman and degrading
conditions and what has happened to these transferees.

Intervene with Greek officials and monitor compliance to
ensure that migrants apprehended by guest guards are transferred to
detention facilities that comply with European and international
standards.

Risk Analysis

Conduct thorough assessments of the risk of human rights
violations occurring before engaging in joint operations or deploying
RABIT forces. Such assessments should take into consideration independent
assessments by governmental and non-governmental rights monitors.

Develop an action plan in consultation with the
Consultative Forum to mitigate any risk identified.

Refrain from operations if risk assessments show they are
likely to expose migrants to human rights violations and if the risk
cannot be averted.

Training in Human Rights

In cooperation with FRA and UNHCR, provide human rights
training to guest officers both on the principle of nonrefoulement and on
minimal standards of detention. Clarify that guest officers must not,
under any circumstances, take action that would expose migrants to inhuman
and degrading detention conditions or that would subject refugees and
asylum seekers to refoulement.

To Greece

Human Rights Watch has made extensive and detailed
recommendations for improving Greece’s asylum and migration enforcement
systems in three other major reports. Most closely related to this report,
Human Rights Watch recommends that Greece:

Implement the recently adopted asylum reform package as
fully and as quickly as possible.

Ensure access to asylum procedures at the border and in
the border region.

Reduce overcrowding by using alternative facilities and
alternatives to detention as much as possible.

Immediately improve detention conditions, and immediately
create open reception centers for asylum seekers and members of vulnerable
groups, such as children.

Provide protection and safe accommodation for
unaccompanied children and other vulnerable groups.

Prosecute police and coast guard officials who abuse their
authority.

To the Fundamental Rights Agency

Clarify that the scope of the Cooperation Arrangement with
Frontex explicitly includes the human rights of migrants, including
protection from inhuman and degrading treatment.

Seek amendment of Article 3 of the Cooperation Arrangement
that only grants FRA access to Frontex Joint Operations “upon
request.”

To the European Asylum Support Office
(EASO)

Develop training in asylum processing specifically
designed for Greek personnel posted in Evros (according to Article 6 of
EASO’s mandate).

Work to improve access to asylum for migrant detainees in
the Evros region and the Greek islands by, among other steps, ensuring
that trained asylum officers will also be available to interview asylum
seekers in locations where Frontex officials are conducting
nationality-determination interviews.

Assess the impact of inhuman and degrading treatment of
detainees on access to asylum in Greece.

Report publicly on any violations of the rights of asylum
seekers by Greek or Frontex personnel in detention centers in Greece.

We are grateful to Frontex for its willingness
to meet with us, to comment on our findings, and to correspond with us on
related issues; to the Greek Ministry of Citizen Protection for its willingness
to give us access to detention centers.

We also thank the UN High Commissioner for
Refugees office in Athens and Greek and Turkish NGOs who provided assistance to
us, including the Group of Lawyers for the Rights of Migrants and Refugees (and
especially Giota Massouridou, who helped with translation and research as
well), the Greek Council for Refugees, the Hellenic Action for Human Rights, Médecins
Sans Frontières (Greece), Mülteci-Der (Turkey), and others that preferred not to be acknowledged.
Finally, we thank all of the refugees, asylum seekers, and migrants who spoke
with us both inside and outside detention and accommodation centers, in many
cases despite expressing fear of possible consequences for having met with us.

[1]
Council Regulation (EC) No 2007/2004, October 26, 2004, establishing a European
Agency for the Management of Operational Cooperation at the External Borders of
the Member States of the European Union, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:349:0001:0011:EN:PDF
(accessed April 13, 2011) (Below: “ Frontex Regulation”). The
agency’s program of work is set by a management board comprised of one
representative from each EU member state and two representatives from the
European Commission.

[2]
The commission’s proposal suggests that the agency “shall simply
assist Member States in implementing Community legislation in the fields of
control and surveillance of the external borders and the removal of
third-country nationals.” COM (2003) 687 final/2, p. 4. Norway and
Iceland joined Frontex as participating states through Council Decision 2007/511/EC of February 15, 2007; Switzerland and
Liechtenstein joined as participating states through Council Decision 2010/490/EU of 26 July 26, 2010. The United Kingdom, Ireland,
and Denmark did not participate in Frontex’s founding regulation and are
not bound to or subject to its application.

[10]
Article 14 of the Frontex Regulation grants the agency the mandate for
“facilitation of operational cooperation with third countries and
cooperation with competent authorities of third countries.”

[11]Regulation (EC) No 863/2007 of the European Parliament and of
the Council of 11 July 2007 establishing a mechanism for the creation of
Rapid Border Intervention Teams and amending Council Regulation (EC)
No 2007/2004 as regards that mechanism and regulating the tasks and powers
of guest officers, at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0030:0039:EN:PDF
(accessed August 16, 2011).

[12]
“Guest officers” are authorized to use force in the same way that
the border guards of the host state are allowed to. Regulation (EC) No
863/2007, July 11, 2007, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R0863:en:NOT
(accessed April 13, 2011), Art. 6(6).

[15]
Proposed amendment of Article 3 of Council Regulation (EC) No 2007/2004 of
October 26, 2004 establishing a European Agency for the Management of
Operational Cooperation at the External Borders of the Member States of the
European Union. In addition to the more expansive powers, the proposed
amendments included a provision that Frontex “shall fulfill its tasks in
full compliance with the relevant Union law, including the Charter of
Fundamental Rights of the European Union, international law, including the
Convention Relating to the Status of Refugees of 28 July 1951 ("the Geneva
Convention"), obligations related to access to international protection,
in particular the principle of non-refoulement.” (Article 1.2) The
amendments also include instructions for Frontex to create a code of conduct
for all persons participating in Frontex activities to act according to the
principles of the rule of law and respect of fundamental rights with particular
focus on unaccompanied minors and vulnerable persons, as well as persons
seeking international protection. (Article 2a)

[22]
Proposed amendment, Article 3a, of Council Regulation (EC) No 2007/2004 of
October 26, 2004 establishing a European Agency for the Management of
Operational Cooperation at the External Borders of the Member States of the
European Union.

[26]
Charter of the Fundamental Rights of the European Union, (2000/C 364/01),
December 18, 2000, http://www.europarl.europa.eu/charter/pdf/text_en.pdf
(accessed April 25, 2011).

[27]
See Report on the Proposal for a Council Regulation Establishing a European
Agency for the Management of Operational Co-operation at the External Borders
(COM(2003) 687 - C5‑0613/2003 – 2003/0273(CNS)), February 24, 2004,
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A5-2004-0093+0+DOC+XML+V0//EN
(accessed April 3, 2011), p. 31.

[29]
Council Regulation (EC) No 168/2007 establishing a European Union Agency for
Fundamental Rights, February 15, 2007, Article 5(b), http://www.fra.europa.eu/fraWebsite/attachments/reg_168-2007_en.pdf
(accessed July 7, 2011). The same regulation says that FRA work should relate
particularly to the Charter of Fundamental Rights (preamble, paragraph 9),
which, in turn, makes no distinction, except specifically in Chapter 5 on Citizen’s
Rights, with respect to the rights of non-citizens living in the EU.

[33]
Proposed amendment, Article 26a, of Council Regulation (EC) No 2007/2004 of
October 26, 2004 establishing a European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the European Union.

[34]
Regulation (EU) No 439/2010 of the European Parliament and of the Council of
May 19, 2010 establishing a European Asylum Support Office. The European Asylum
Support Office is to strengthen practical cooperation on asylum by facilitating
the exchange of information and experiences between European Union (EU)
countries.

[36]
Work Programme 2011, European Asylum Support Office, http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/easo_work_programme2011_/easo_work_programme2011_en.pdf
(accessed September 9, 2011).

[37]
Commissioner Malmström
said: “I am aware of the very difficult conditions in which irregular
migrants and asylum seekers are being detained in the Evros region. The
humanitarian situation in these places of detention is a major concern.
Third-country nationals held in detention for whatever reason should always be
treated in a humane and dignified manner and I call upon the Greek authorities
to take immediate action to remedy the situation. In this respect, I encourage
Greece to make maximum use of emergency measures financed under the European
Refugee Fund, to address immediate needs until Greece’s new national
independent asylum agency is established. I equally welcome the cooperation of
the Greek authorities with the UNHCR and its strategic involvement in the
reform of the asylum system.” “Statement by Cecila Malmström, EU Commissioner
for Home Affairs, on the Deployment of EU Asylum Support Teams in
Greece,” European Commission Press Release, Memo/11/214, April 1, 2011, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/214
(accessed April 4, 2011).

[41]Evros is officially designated as a Peripheral Unit belonging to
the Periphery/Region of Eastern Macedonia and Thrace, but for ease of
reading, we will refer to this as “the Evros region” throughout the
report.

[43]
Council Regulation (EC) No 343/2003, February 18, 2003 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF
(accessed April 13, 2011) establishing the criteria and mechanisms for
determining the member state responsible for examining an asylum application
lodged in one of the member states by a third-country national, February 25,
2003. Human Rights Watch analyzed the problems with the Dublin-II
Regulation on several occasions before, see: Greece/Turkey – Stuck in
a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the
Greece/Turkey Entrance to the European Union, November 2008,
http://www.hrw.org/en/node/76211/section/8, p. 22.

[44]
Human Rights Council, Mission to Greece Report submitted by the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak, March 4, 2011, A/HRW/16/52/Add.4, http://www.scribd.com/doc/50378215/Human-Rights-Council-Mission-to-Greece
(accessed April 3, 2011) (Below: “Mission to Greece Report, March 4,
2011”).

[49]
Human Rights Watch interview with Kari Wahlström,
head of Frontex Operational Office, with Leszek Szymanski and Gerald
Baumkirchner, Piraeus, February 15, 2011. (Below:” Human Rights Watch
interview with Wahlström
and staff, Piraeus, February 15, 2011,” unless only a particular named
person is being quoted.)

[50]
In a letter of May 19, 2011 from Gil Arias Fernández, Deputy Executive
Director of Frontex to Human Rights Watch, Frontex challenges that Szymanski, who
was one of a group of experts sent to the Evros region, ever “examined or
inspected” Greek detention centers. They do not however dispute that he
visited the centers and witnessed the conditions.

[56]
Ibid., Also at para. 47: “The Special Rapporteur concludes that the
conditions in all facilities visited operating to detain aliens awaiting
deportation, with the exception of the Mersidini Migration Detention Centre,
were not in conformity with the UN Body of Principles for the protection of all
persons under any form of detention or the UN Standard of Minimum Rules for the
Treatment of Prisoners. The prolonged detention of aliens under the described
conditions of detention amounts to inhuman and degrading treatment, in
violation of Articles 7 and 10 ICCPR.” The International Covenant on
Civil and Political Rights, adopted December 16, 1966, General Assembly
Resolution 2200A (XXI), entered into force March 23, 1976 http://www2.ohchr.org/english/law/ccpr.htm
(accessed April 25, 2011).

[68]
Ibid., FRA report, p. 9. For more on informal push-backs to Turkey, see Greece/Turkey
– Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants
at the Greece/Turkey Entrance to the European Union, November 2008, pp.
32-47, http://www.hrw.org/en/reports/2008/11/26/stuck-revolving-door-0, and Unsafe
and Unwelcoming Shores, October 2009, http://www.hrw.org/en/node/86025.

[92]The guard’s comment was not a formal interview.
Human Rights Watch heard similar accounts of detainees having to urinate into
bottles and saw bottles of urine in the cells at the Petrou Ralli detention
facility during our 2008 visit, as reported in Stuck in a Revolving Door
report, p. 82. The CPT made the same observation in two Greek detention centers
(CPT Report to Greece, February 8, 2008, pp. 17, 18). The Greek government
responded to the CPT by saying that this had “happened in the past, and
only in cases of psychologically disordered detainees,” and that
detainees at present have access to the toilet “24 hours a day, or
whenever they ask.” (Response of the Government of Greece to the CPT
Report, p. 9, para. 1.a.(6)).

[105]
The Fundamental Rights Agency reports similar findings. See, p. 22: “When
speaking to the migrants held in the facilities, the FRA was confronted with a
generalized lack of understanding about why they were detained and for how long
they remain there. This resulted in heightened stress and could contribute to
the violent acts with the facilities that were reported by FRA. Such lack of
information, combined with the absence of independent legal advice also
explains why individuals follow alleged instructions obtained by smugglers not
to apply for asylum at the border. In addition, most interlocutors stressed
that those who seek asylum are likely to remain in the border detention
facilities for a much longer period of time, as the police waits for a decision
by the refugee commission before ordering their release.”

[112]
Ibid. This is also made explicit in the RABIT regulation: Regulation (EC) No
863/2007, July 11, 2007,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R0863:en:NOT
(accessed April 13, 2011), Article 5,

[117]
Greece’s inability to return migrants from certain countries at times
relates to the dangers of violence in those countries, but also sometimes
relates to lack of diplomatic relations or lack of cooperation with the sending
countries for accepting their nationals back.

[119]
"Agreement between the Hellenic Republic and the Republic of Turkey on
Cooperation of the Ministry of Public Order of the Hellenic Republic of Turkey
on Combating Crime, especially Terrorism, Organized Crime, Illicit Drug
Trafficking and Illegal Migration," January 20, 2000. For an analysis of
readmission agreements and human rights, see European Parliament,
Directorate-General for Internal Policies, Policy Department C: Citizens’
Rights and Constitutional Affairs, “Readmission Policy,” PE
435.632, September 2010, http://cadmus.eui.eu/bitstream/handle/1814/14957/EP_ReadmissionPolicy_en.pdf?sequence=4
(accessed April 14, 2011).

[131]
Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community, December 13, 2007 http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML;
The Charter of Fundamental Rights of the European Union, 2000/C 364/01,
December 18, 2000, http://www.europarl.europa.eu/charter/pdf/text_en.pdf (both
accessed April 13, 2011), Art. 6, para. 1.

[134]
Frontex specifically declared in its “Fundamental Rights Strategy”
that the ECtHR human rights jurisprudence applies to its activities, Ibid.

[135]
Human Rights Watch recognizes that Frontex is not bound by the ECHR, since the
EU has not yet acceded to the Convention. But theM.S.S. v.
Belgium and Greece ruling of the ECtHR is nevertheless instructive and
touches on the prohibition to subject people to inhuman and degrading treatment
that appears not only in the ECHR, but in the Charter as well, to which Frontex
is bound.

[137]
See ECtHR Selmouni v. France, no. 25803/94, ECHR 1999-V http://www.unhcr.org/refworld/country,,ECHR,,MAR,456d621e2,3ae6b70210,0.html
(accessed April 4, 2011). The Court confirmed that even in the most
difficult circumstances, such as the fight against terrorism and organized
crime, the Convention prohibits in absolute terms inhuman or degrading
treatment or punishment, irrespective of the conduct of the person concerned
(see also ECHR Chahal v. the United Kingdom, 15 November 1996, Reports
of Judgments and Decisions 1996-V, http://www.unhcr.org/refworld/country,,ECHR,,IND,,3ae6b69920,0.html,
(accessed April 4, 2011)).

[151]
“We would like to bring to your attention that detention facilities for
migrants on Samos and Chios Islands with a total capacity of more than 400
places are currently empty…. We therefore decided to call on Greek
authorities to immediately start transferring migrants from the Evros region to
the Aegean Islands…. We therefore believe that our proposal is realistic,
doable, and would immediately improve the desperate conditions of many
migrants. We therefore urge you to press Greek authorities to start
transferring migrants as a matter of priority.” Email letter from
Simone Troller, senior researcher, Human Rights Watch, to Gil Arias Fernandez,
deputy executive director of Frontex, December 7, 2010, on file with Human
Rights Watch.

[152]
On the importance of precedent in the ECtHR, and of national officials taking
into account Convention rights, including the jurisprudence on them, see Alec
Stone Sweet and Helen Keller, “The Reception of the ECHR in National
Legal Orders,” in Keller and Stone Sweet, eds, A Europe of Rights
(Oxford, 2008), p. 14.